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Article: When Can Parody Be Cited As Fair Dealing In A Copyright Dispute?
Author: Tanisha Agarwal
Introduction
Section 52(1)(a) [1] of the Copyright Act, 1957 (“the Act”) provides that certain acts are to be infringement of copyright. It reads:
“(1) The following acts shall not constitute an infringement of copyright, namely-
(a) a fair dealing with any work, not being a computer programme, for the purpose of…
(ii) criticism or review, whether of that work or of any other work”.
Which recreation of original works is parody and which isn’t? In what situations would unauthorized use of an original work for creation of a parody fall under the scope of fair dealing?
With the rise in social media, an exponential rise in copied works can be seen. Memes, reviews, satires have taken the Internet by storm. Accordingly, this statutory interpretational issue is contested every now and then.
What is Parody
A parody is an intentional exaggeration or imitation of someone else’s original work in such a manner that it humorously and critically comments on an existing work to mock or criticize such work. Therefore, parody by its very nature is reliant upon the original work and is typically created without permission from the original creator.
The Purpose and Competition Test
If a parodist or spoof-maker does not compete with the original work and merely criticizes or ridicules the original, should then their work constitute fair dealing? In Blackwood and Sons Ltd. And Ors. v. AN Parasuraman [2] [AIR 1959 Mad 410] a single judge bench of the Madras High Court [R Ayyangar J.] laid down two conditions to explain the term “fair” in “fair dealing”:
“(1) that in order to constitute unfairness there must be an intention to compete and to derive profit from such competition and (2) that unless the motive of the infringer were unfair in the sense of being improper or oblique the dealing would be fair.”
In most cases, parodies do not seek to compete with the original but simply ridicule or criticize the original in a way that uncovers its flaws. However, it is unclear when an infringer’s motive could be termed as improper or oblique.
This aspect was clarified in Civic Chandran v. C. Ammini Amma [3] [16 PTC 329 Ker] wherein a single judge bench of the Kerala High Court [T.V. Ramakrishnan J.] was examining the motive of a counter-drama of a famous drama ‘Ningal Enne Communistakki’. Accepting the Blackwood ruling, the Court gave a further three-point test stating “..court will have to take into consideration (1) the quantum and value of the matter taken in relation to the comments or criticism; (2) the purpose for which it is taken; (3) the likelihood of competition between the two works.”
The Court observed that the purpose was not to misappropriate the theme, form of presentation, character, dialogues and the techniques adopted in writing the drama or to imitate the drama or to produce anything similar. The real motive of the counter-drama was to criticize the ideology depicted in the drama and how it was unsuccessful in accomplishing the targets it had intended to achieve. Therefore, an improper motive would have been the counter-drama intending to misappropriate from the original by creating something similar.
When will Parody not be fair dealing?
Will a parody be fair use if it does not meet the above-mentioned criteria? Courts have acknowledged that parodies by their very nature demand some taking from the existing work unlike other forms of fair dealing, which is why the use of or replication of the original work in parodies is permitted to some extent. For instance, in a peculiar situation a division bench of the Delhi High Court [U Mehra, O Dwivedi JJ.] in Pepsi Co v. Hindustan Coca Cola Ltd. [4] [2003 (27) PTC 305 Del] , held that “… it can prima facie be concluded that the roller coaster commercial of the respondent is nothing but a literal imitation of the copyright work of the appellant with some variations here and there.” The Defendant claimed the defense of parody in a suit for infringement brought by the Plaintiff with respect to its popular slogan “Yeh Dil Maange More”. The Defendant was unauthorizedly using a similar slogan “Kyo Dil Maange No More” in their advertisement. The Court restrained Hindustan Coca Cola and held that it was a colourable imitation of Pepsi Co.’s commercial.
Therefore, when parody is a mere imitation and nothing more or if it intends to compete with the original, the defence of fair dealing cannot be claimed.
Conclusion
‘Parody’ lacks a concrete definition or scope thus, making each case extremely subjective and ambiguous. However, in line with the object of the Copyright Act, parodies promote creativity and the growth of ideas. This has necessitated Courts to strike a balance between rights of the author in his copyrighted work and the interests of society at large.
Indian copyright laws do provide sufficient protection to parodists against infringement in a copyright dispute. However, the parodist must show that he/she has no intention to compete with such copyright holder or to derive profits from such competition and that it is a sheer exaggeration of facts for entertainment and to expose certain shortcomings.
Endnotes:
[1] https://copyright.gov.in/Copyright_Act_1957/chapter_xi.html
[2] Blackwood and Sons Ltd. And Ors. v. AN Parasuraman [AIR 1959 Mad 410]
[3] Civic Chandran and Others v. C. Ammini Amma [16 PTC 329 Ker]
[4] Pepsi Co v. Hindustan Coca Cola Ltd. [2003 (27) PTC 305 Del]
Disclaimer: Views, opinions, interpretations are solely those of the author, not of the firm (ALG India Law Offices LLP) nor reflective thereof. Author submissions are not checked for plagiarism or any other aspect before being posted.
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